NARAYAN v Minister for Immigration - [2006] FMCA 658

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NARAYAN v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 658

MIGRATION – Spouse visa – Migration Review Tribunal – whether jurisdictional error – finding of ‘no probative evidence’ of genuine spouse relationship – probative evidence available – whether jurisdictional error – domestic violence.

Migration Act 1958, s.66
Migration Regulations 1994, reg.1.15A(1A), 1.15A(3), 1.21, 1.23, 1.24, 1.25, 1.26, Sch 2, cl. 820.211, 820.221

Meroka v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 251
Cakmak v Minister for Immigration and Multicultural Affairs [2003] FCAFC 257
Kozel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 658
Sok v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 56

VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant:

AVINESH NARAYAN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 287 of 2005

Judgment of:

McInnis FM

Hearing date:

9 December 2005

Date of Last Submission:

19 December 2005

Delivered at:

Melbourne

Delivered on:

5 May 2006

REPRESENTATION

Solicitor for the Applicant:

Mr T. Fernandez

Solicitors for the Applicant:

T.A. Fernandez

Counsel for the Respondents:

Mr C. Horan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 22 February 2005.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent pay the Applicant’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 287 of 2005

AVINESH NARAYAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant seeks judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 22 February 2005. The Tribunal affirmed a decision of the delegate of the First Respondent refusing to grant to the Applicant a temporary spouse visa.
The Applicant is a citizen of Fiji who arrived in Australia on

16 January 1999 as the holder of visitor visa. On 2 March 1999 the Applicant married an Australian citizen, Sandhya Gaundar (the nominator).
On 29 March 1999 the Applicant applied for permanent residence based on his marriage to the nominator. The application comprised an application for a temporary spouse visa and an application for a permanent spouse visa.
An interview with the nominator was conducted by an officer of the First Respondent's department on 11 June 1999. A file note of that interview appears at Court Book page 43 and relevantly sets out the following:-
“She stated that she wished to report a contrived marriage.
I asked her to explain what she meant and who the marriage was between.
She said that she was forced into a marriage with Avinesh by her parents.
She stressed it was an arranged marriage, she didn't want to marry Avinesh but she had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FMCA 658
Decision Date: 5 May 2006

CaseChat Overview and Summary

Narayan brought an action against the Minister for Immigration, challenging a decision made by the Minister to deny a visa application. The case was heard in the Federal Court of Australia, where Narayan sought to overturn the Minister's decision through a writ of certiorari and a writ of mandamus. Narayan argued that the Minister had made an error in law in denying the visa application, and that the Minister had failed to properly consider all relevant factors in making the decision.

The legal issues before the court were whether the Minister had made an error in law in denying the visa application, and whether the Minister had failed to properly consider all relevant factors in making the decision. The court considered the applicable legislation and relevant case law in determining whether the Minister had acted outside of his or her powers, or had failed to properly consider all relevant factors. The court also considered the evidence and arguments presented by both parties in making its decision.

The court found that the Minister had indeed made an error in law in denying the visa application, and had failed to properly consider all relevant factors in making the decision. The court quashed the Minister's decision and ordered the Minister to determine the visa application according to law. The court also ordered the Minister to pay the Applicant's costs. The Minister was given the opportunity to review the decision and to determine the visa application in accordance with the law.

Orders

Orders of the court

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 22 February 2005.

A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

The First Respondent pay the Applicant’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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